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TMI Blog2017 (3) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... see is required to furnish fresh return of income for each of the six assessment years in regard to which a notice has been issued. It is this return which is filed consequent to the notice which would be subject of assessement by the Revenue for the first time in the case of abated assessment proceedings. Consequent to notice under Section 153A of the Act the earlier return filed for the purpose of assessment which is pending, would be treated as non est in law. Further, Section 153A(1) of the Act itself provides on filing of the return consequent to notice, the provision of the Act will apply to the return of income so filed. Consequently, the return filed under Section 153A(1) of the Act is a return furnished under Section 139 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 153A r.w.s. 143(3) of the Act. These two appeals relate to the Assessment year 2007-08 and 2008-09 being two years in which the pending assessment proceedings had abated on issue of notice under Section 153A of the Act. 2. The Revenue has urged the following substantial question of law for our consideration :- (i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the respondent assessee was entitled to make a claim which was not made in the return of income originally filed under Section 153A r.w.s. 143(3) of the Act before the Assessing Officer and also before the appellate Authorities under the Act ? 3. The respondent-assessee is engaged in the execution of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the respondent assessee quantified its claim year wise placing reliance upon relevant clause of the contract with its customers so as to claim deduction of the taxable income to the extent the customers have retained i.e. 5-10% of the contract amount till the completion of the defect liability period. 5. The Assessing Officer by its two separate Orders dated 31st December, 2010 passed under Section 153A r.w.s. 143(3) of the Act did not entertain the aforesaid claim when quantified during the assessment proceedings. This by holding himself bound by the decision of the Apex Court in Goetze (India) Ltd. vs. Commissioner of Income Tax [2006]284 ITR 323 to hold that he has no power to allow deduction which is not been claimed either in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed. In any event, the impugned order further proceeds to hold that even if the quantification made during the course of the assessment proceeding is considered to be a fresh claim and could not have been entertained by the Assessing Officer, there was no bar / impediment in raising the claim before the Appellate Authorities under the Act for consideration. Thus as the facts are already on record the same could have been considered by the Appellate Authorities. In that regard reliance was placed upon decision of Delhi High Court in Commissioner of Income-Tax vs. Jai Parabolic Springs Ltd [2008] 306 ITR 42. Thus allowed the respondent-assessee's appeal before it. 8. The grievance of the Revenue before us is that the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax v. Pruthvi Brokers and Shareholders Pvt.Ltd [2012]349 ITR 336 wherein the reference has also been made amongst other decisions, to the decision of the Delhi High Court in Jai Parabolic Springs Ltd. (supra) wherein it has been held that there is no prohibition in the Tribunal to entertaining additional ground / claims which was not placed before the lower Authorities. In view of the above, we are not called upon to decide the applicability of the decision of Goetze (India) Ltd. in the present facts viz. whether or not claim for quantification was a fresh claim which is not made in the return of income or in the revised return of income. 10. The reliance on the decision of the Apex Court in Commissioner of Income Tax v. Sun Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return of income so filed. Consequently, the return filed under Section 153A(1) of the Act is a return furnished under Section 139 of the Act. Consequently, the respondent-assessee is being assessed in respect of abated assessment for the first time under the Act. Therefore the provisions of the Act which would be otherwise applicable in case of return filed in the regular course under Section 139(1) of the Act would also continue to apply in case of return filed under Section 153A of the Act and the case laws on the provision of the Act would equally apply. 12. This Court in Pruthvi Brokers and Share holders P.Ltd. (supra) while dealing with a return of income filed under Section 139(1) of the Act has held that an assessee is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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